Interviewer: Okay, good afternoon. - Hi. Interviewer: We are very grateful to you for participating in the Witness to Guantanamo project. We invite you to speak of your experiences and involvement working in the White House, the Bush White House during the early years, post 9/11. We are hoping to provide you an opportunity to tell your story in your own words and people are in America and around the world need to be, have, need to understand what happened post 9/11, and we welcome your interest in expressing your experiences to us. We are hoping to create an archive of stories that people of the future will be able to observe, and we appreciate your coming to join with us. If you have any questions along the way, feel free to do it. - Sure. Interviewer: If there's anything that you want us to pull, we can remove it, and if you want to take a break, Brad, just go ahead and tell us and we can take a break. - You bet. Interviewer: So thank you, and I'd like to begin by having you tell us your name, and where you work and also perhaps your age as well as your date of birth, where you lived and where you live now jus for the record. - Yeah. My name is Bradford Berenson. I'm 50 years old. I'm currently the head of litigation for the General Electric company. Live and work here in southern Connecticut. - What's your date of birth? - Why do you need that? I, I, I'm always just leery of putting, you know, specific personal identifying information like that social security, birth date, whatever, with identity theft being the way it is. Interviewer: It's more for people watching so, 'cause when they see this, years from now, they'll wonder what year we've filmed it so we can document that. - Sure. Interviewer: Actually it's 2015, so now we can. - Yeah, well, my, my year of birth is 1965. Interviewer: Okay, perfect, wonderful. Okay, and can you tell us where you grew up, is comfortable telling you? - Sure, yeah. I grew up in the Los Angeles area in part and in part in the suburbs of Washington, DC. Interviewer: And a little bit about your schooling. - Went to high school in L.A., college at Yale in New Haven, Connecticut. After a couple of years working in New York City, went up to Cambridge, went to law school at Harvard Law School and then thereafter began my legal career in Washington. Interviewer: Can you tell us a little bit about your legal career? When did you graduate and how that led you to the Bush White House. - Yeah, I graduated law school in 1991, moved down to Washington to do a couple of federal court clerkships, first with Larry Silberman on the DC circuit, and second with Justice Anthony Kennedy of the U.S. Supreme Court. Following the clerkships, I began work at the international law firm of Sidley Austin, doing primarily white collar criminal defense, but also international litigation and regulatory litigation of various kinds. Became a partner there in 1999 and left to join the Bush White House in 2001, really just a few days before the inauguration. So I started working in the transition offices a week or two prior to the, the first term inauguration of President George W. Bush, moved into the White House with him and the rest of the original White House staff the day of the inauguration and worked there for almost exactly two years. I left the day that Tom Ridge was sworn in as the first Secretary of Homeland Security because the policy development and legislative process for the creation of the Department of Homeland Security was a big part of my responsibilities during my second year there. Interviewer: And what was your position there? - I was associate counsel to the President. Interviewer: And what exactly did you do the year earliest, or the early days before 9/11? So what were you doing? - Yeah, so I think I was hired originally because with the example of the Clinton administration fresh in everybody's mind, the new White House counsel, Alberto Gonzales, thought he might need white collar criminal defense lawyers in the White House and in the White House counsel's office, and I had obviously expertise in white collar criminal defense and in congressional investigations. So I think that was the skillset that brought me to the White House. Obviously nothing to do with what ultimately ended up being the core of my responsibilities in the post 9/11 period, but I had been on the steering committee of lawyers for Bush-Cheney 2000, became known to the campaign leadership through the course of the recount fight and all of the litigation that ensued in the Bush v. Gore battles and in Florida and ultimately in the Supreme Court and got a call out of the blue in December, sometime of 2000 from Judge Gonzales, asking if I'd be interested in interviewing for a position on his staff. I was, I did, and was offered the job. Interviewer: Would you have gone back to the law firm if you hadn't? - Well, I had never left the law firm. I was, I was at the law firm continuously from the fall of 1993 up until I left to join the White House, and I did ultimately return to the law firm after my White House service. Interviewer: And as things progressed up until 9/11, you worked in white collar crime. - I did some congressional oversight. So when there were congressional investigations, subpoenas, demands for information from the White House, I assisted with that. I also had a lot to do with developing the process and system that the Bush White House used really for all eight years for appointing federal judges. A fellow who's now himself a federal judge on the DC circuit, Brett Kavanaugh, and I designed the system that the White House used to gather and assess, vet candidates, formulate recommendations for the President for whom to appoint to the federal judiciary and then, you know, to pursue confirmation after those nominations have been made. So did some of that, did some policy work. I was responsible for certain portions of, of the Justice Department, the Civil Division and others. The office kind of divides up oversight of other federal departments and agencies. I think I had the EPA, I had the Department of the interior. So there was plenty of work to do prior to 9/11 on, on other things and of course neither I nor anybody else imagined how radically the job would change after that. Interviewer: How many associate White House counsel were there? - I think there were eight of us to begin with. So there was Judge Gonzales who was the White House counsel. There was his deputy, Tim Flanagan, and then I think there were eight associate White House counsels, and that group of 10 really was the core of the, the White House Counsel's office. Interviewer: Just as an aside, is that typical, do you know, in past administrations? - It varies. So that was much, much smaller than the Clinton White House Counsel's office had been at its apex, but the Clinton White House had an uncommon amount of legal trouble focused directly on the White House, and so that then grew into a relatively large law firm. I think 10 as a, as a starting number for a White House Counsel's office in modern times is roughly normal. Some have been bigger. I don't know of any smaller. It was a pretty tight knit group. Interviewer: And where were you on 9/11? - I was working at the White House on 9/11. At the exact time of the attacks I was up on Capitol Hill for a meeting related to judicial appointments. It was a breakfast meeting at a restaurant called La Colline, which was just steps from the Senate side of the Capitol. We were meeting with some Senate staffers and we got word of the first plane hitting the first tower through somebody's pager or device when we were sitting at the breakfast table. Everybody more or less shrugged it off thinking it was probably a small private plane, an accident of some sort, but when we left breakfast and got into the White House car to return back to the complex, the military driver informed us that a second plane had hit the second tower, at which point I and my colleagues knew immediately that this was, was terrorism, and as we drove back to the White House, we were, we were coming around the ellipse, the South lawn of the White House, which at that time was still open to normal vehicular traffic, we could see off to our left a huge plume of black smoke rising from across the Potomac. We didn't know what it was or what had caused it, but we had the very definite sense at that moment that Washington was involved in the attacks as well as New York, and when we pulled up to the gate at West Executive Avenue, we were very surprised because the gates began to swing open without the Secret Service having done any of the normal security checks of the car that they do when even a White House car is returning, and at first we were baffled and then we saw staffers running out of the complex through the gate and the complex was being evacuated. A member of the uniformed Secret Service poked his head into the car, told us that the Pentagon had been hit, that there were other planes headed toward the White House, that we should immediately get out of the White House car into our personal vehicles and get away from the center of the city as quickly as we could, and that's what we did. Interviewer: And they didn't tell you where to go, just, just leave? - Just leave. Interviewer: So what happened next? - I went home. I gave a ride to the woman that I was sharing the car with. We got to my house. My wife was leaving the city around the same time. She'd been working at the Museum of Natural History. When she got home, we decided that I would go to my children's elementary school, pull them out of class. I found a safe place at some distance from Washington and upwind of Washington for them to go for an indefinite period and I drove them out there. It was a farm out toward Hagerstown owned by some friends of ours and my own concerns at that time were mostly about follow on chemical or biological attacks, hence the importance of being upwind of, of DC, and once I got them safely established there, I turned around and came back into the center of the city, rejoined the White House staff, where it was convening outside of the White House complex, just a block away at the corporate offices of Daimler Chrysler and, you know, spent the rest of that afternoon with the rest of the staff working on what we needed to work on. I had also made arrangements while I was driving back with the dean of the American University Law School to have access to their law library that night, and they were also going to make a law librarian and several student legal research assistants available to us. I didn't know whether we would need that, but I made it as a backup plan in case we couldn't get back to the complex 'cause I anticipated we might have a long night as indeed we did and I spent the night of 9/11 working there with Brett Kavanaugh, who's the fellow I mentioned before, now a judge on the DC circuit, researching presidential emergency powers and war powers under the direction of the deputy White House counsel, Tim Flanagan. Interviewer: And you said American University? - Yes. Interviewer: What, and I assume you're saying there's a library at the White House, which you didn't access at that. - Right, so no one, no one of the staff was permitted back into the White House complex until the following morning. There were a handful of people in the PEOC, in the President's Emergency Operations Center, underneath the East wing of the White House during the attacks and their immediate aftermath. There are famous photographs of that group centered on the Vice President, but the rest of the staff had been evacuated from the complex and the Secret Service was not prepared to let anybody back in until the following morning, but the morning of September 12th, we were all back in the complex, but the streets of Washington DC were like a, like they were under a military occupation. I mean, we had to show our White House credentials to get past several military checkpoints, there was a security perimeter pushed rather far out from the White House, the morning of, of 9/12, but we were all able to reserve resume our work in our normal workspaces that next morning. Now there were subsequent changes made to the officing arrangements because of security concerns, but on 9/12, we were back in our, our own offices. Interviewer: And you and Brett were particularly chosen to work on war powers of the President and the other eight were not or the other seven were not? - Well, Tim Flanagan, the deputy, was the one really directing traffic and assigning everybody what they needed to look at. I don't know what the other six were doing that night. Brett's focus and mine that evening was much more on statutory powers in the domestic sphere than Constitutional powers and war powers. You know, all of that was happening quickly and simultaneously, but, but we were particularly focused that evening on what authorities the President would have to act on his own to try to deal with the immediate aftermath and the situation, for example, in lower Manhattan, so the Stafford Act, which establishes the Federal Emergency Management Agency and, and other aspects of federal law. Interviewer: And how did that evolve? Did you stay on that track or did you move into another? Stayed on that track to some extent. I think Brett's work evolved in the direction of aviation security. There was legislation passed shortly after 9/11 to try to rescue the domestic airline industry, provide certain protections, terrorism, risk insurance, that sort of thing. He focused a lot on that. My focus immediately after 9/11 moved to the financial war on terror, asset blocking orders that the President issued. In fact, his first formal action against terrorists, terrorist groups and others who were sponsoring terrorists was in the form of an executive order that was blocking financial transactions and assets of a variety of designated individuals, some Islamic charities, some businesses, terrorist organizations. I think that may have been promulgated on the 29th of September, 2001, so just a couple of weeks after 9/11. There was a Rose Garden ceremony and I think he described it as kind of the first, the first shot fired by us in the war on terrorism, and I worked very closely with counsel from the CIA, the FBI, and the Treasury Department to get that done in that very short period of time. Interviewer: And where would you go next? - Well, I can't remember exactly how soon it was after 9/11, but issues of how to deal with detainees that we were gonna capture when we got boots on the ground in Afghanistan very quickly became another area of focus for me, not detainee treatment issues. Those kinds of issues, how to, how to treat people after they were in custody arose only after I left the White House. I left in January of 2003, a few months before we invaded Iraq. So none of those detainee treatment issues were salient or ripe or public, or even came to my attention privately while I was working there. Rather the issues I was focused on were, what do we do when we go into Afghanistan and we capture a suspected terrorist? You know, we obviously can't release that person. Once you've captured someone like that, you can't kill him. So what do you do? What do you do with him? And so those, I began to look at those issues as well along with plenty of other people in the government, including most especially at the Department of Defense and the Department of Justice. Interviewer: Is that the working group that? - Yeah, so, well, the working group was more focused on military commissions, but it was looking at some of these broader issues as well. I assume you're, you're asking about the working group that was chaired by Ambassador Pierre Prosper at the State Department, yes. So that was part of this work. Interviewer: And your mission was to locate a place that, other than Guantanamo, for housing detainees. - Well, place was a question that came up. Location was a question but it was kind of a secondary question. The first questions really were, what are these people in our hands and what do we need to do with them? So those implicated issues involving the Geneva Conventions and whether the Geneva Conventions did or did not apply, how one treated an unlawful enemy combatant, that is, someone who was not part of the uniform military services of the nation-state fighting according to the laws of war in uniform pursuant to the except, accepted standards of the civilized world for how to engage in combat and protect civilians. So we found ourselves, the research was, from a historical perspective very, very interesting because a lot of the precedents took you back to the Civil War, took you back to the Revolutionary War, took you back to the war against the, wars in the west against the Native American tribes who, for better or worse at that time, were not regarded as members of an actual nation, but really as in effect irregulars or terrorists or unlawful enemy combatants, and there were attorney general opinions from the Indian Wars. So we began looking at all of that stuff to try to understand how the legal system had previously coped with irregular warfare and the capture of people fighting contrary to the laws of war and out of uniform as the al Qaeda people were. Interviewer: So you're saying there were parallel discussions, one on whether the GC, Geneva Conventions apply and also on finding, going back to finding some locations to house the people you're capturing. - Yeah, and, and, you know, there were parallel work streams. Everybody had a somewhat different focus. So our focus at the White House level, we needed to understand the, the law and the legal background rules. We needed to be able to test the departments and agencies and their conclusions, but as is normally the case for White House lawyers there was a very substantial policy component to the work we were doing, because the question in every case is not only, will the course of action that we're going to recommend here and that the President's going to order comply with the law, whatever legal norms apply, but is it consistent with what this President wants to do as a matter of national policy, national security policy, foreign policy and the like, so there was a heavy policy overlay on top of the law. The people in the Department of Defense and the State Department were the ones really burrowing in deep and hard on issues related to the Geneva Conventions. You know, State Department legal advisor is the preeminent expositor of the treaties that the United States is a party to, something like the Geneva conventions. The Department of Defense general counsel is heavily, heavily involved. The Office of Legal Counsel at the Department of Justice was involved in everything. So we were, at the White House, more often than not the recipients of the deep legal research, analysis, and writing. We were processing that, learning what we needed to learn, in order to advise the counsel to the President so he could advise the President himself and also thinking through the, the policy options. So on this question, once, once it had been decided that these people were unlawful enemy combatants and that they could be captured and detained indefinitely subject to minimum standards of humanitarian treatment, you know, you had to house them, you had to clothe them, you had to feed them, you couldn't abuse them physically. You could interrogate them. You had much more latitude to interrogate them than you would have someone afforded POW status under the Geneva Conventions. That was one of the important implications and advantages of unlawful enemy combatant status, but once we knew we were going to be treating them as unlawful enemy combatants, the question became, where do we house them, and one option was to keep them relatively close to the battlefield in Afghanistan on bases that we might establish or have there, although we were still at that early stage a long way from having the kind of infrastructure in Afghanistan that we eventually had, so that wasn't considered a particularly viable option. International law also provides generally that you have to remove detainees from the hazards of battle, keep them at some distance from the battlefield, and things were so fluid in Afghanistan at that time. The Taliban was still running the place that it just wasn't considered in conformance with international law to really keep them in Afghanistan. So then the question becomes where. Thought number one was well, maybe you just housed them in the brig on a aircraft carrier, sitting in the open ocean somewhere. My recollection is that there were also international law problems with doing that because if you're in international waters, you're really not in anybody's territorial jurisdiction, and I can't remember the precise legal problem with housing people on the oceans, but that was relatively quickly ruled out as well. The next obvious consideration as well, do we bring them to the United States? Do we put them in the Naval brig in South Carolina or in Fort Leavenworth or someplace like that, and there were a variety of reasons why that was considered inadvisable, and then, you know, the notion of Guantanamo arose and Guantanamo had a number of practical and legal advantages that made it a fairly obvious choice when compared to the only other realistic alternative we thought we had at the time, which was to detain them here on the, on the soil of the U.S. Interviewer: Could you tell us why detaining them on the U.S. soil was not a good idea? - Yeah, so as best I can recall, our thinking at the time started with basic safety and security concerns. These were obviously exceptionally dangerous people affiliated with the most lethal terrorist network in the world which just slain 3,000 Americans in lower Manhattan, and we did not want to create a target on U.S. soil near other U.S. citizens that might draw Islamic terrorists onto our soil, give them an incentive to burrow into U.S. communities to try to launch attacks on those facilities on people who worked in those facilities. So, you know, we were, we were keenly aware that then-Judge Michael Mukasey, you know, almost a decade after he had presided over the the trial of the first World Trade Center bombing defendants, still had 24 hour personal security, and we did not want to put other people, other Americans in that position if we could help it. So safety and security for American citizens and communities probably led the list, and yet we didn't want these people to be so far away from the United States that we couldn't have access to them, policymakers couldn't have access to them, frankly even the press and human rights groups. We thought that there was an advantage to having them close to the United States. There would be better oversight and control of what was happening to them. There'd be a little more transparency, a little more ability for people who wanted to check what was going on to do that, and then the third, I think third major consideration was that we believed, wrongly as it turned out, that the writ of habeas corpus would not extend to detainees who were outside U.S. soil. There was a debate to be had over whether Guantanamo was or was not U.S. soil given the terms of our lease with Cuba, but our best view and the collective view of the people inside the administration at the time was that that remained Cuban soil, and as such under what seemed to us at the time very clear and unequivocal precedence, there would have been no ability on the part of the U.S. federal courts to review these battlefield detentions to entertain petitions for writs of habeas Corpus and to embroil the administration and the country in the kind of lawfare that subsequently became absolutely endemic and which the people prosecuting it, you know, ultimately I would say won, much to our surprise and frankly, chagrin as time went on. The way the Supreme Court ended up ruling in the major, in the four or five major terrorism cases starting with Rasul was a surprise, I think, and by and large a disappointment to most of the administration lawyers, including myself. Interviewer: I was just going to ask you that. So it was pretty much unanimous among the attorneys you've worked with that Guantanamo was secure and that habeas probably would not. - That was the strongly held view. With the benefit of hindsight I can identify a very clear blind spot that we all had, which led this group, not just the small group in the White House, but a much larger group including senior level appointees in the Justice Department, State Department, Defense Department, to the wrong conclusion with respect to the availability of habeas. That blind spot was mistaking our belief in how the law and the courts ought to work for a belief in how the law and the courts really do work. That is, I think a lot of us learned quite a bit from the years of litigation that ensued. There was a, if memory serves, there was a unanimous Supreme Court decision directly on point with respect to habeas corpus. I believe it was Johnson versus Eisentrager, and we all looked at that very carefully, read it the way strict constructionists and believers in judicial restraint read Supreme Court opinions and said, this is easy, this is ironclad. There's a, you know, a modern, unanimous Supreme Court decision saying that habeas corpus does not extend outside the territorial United States. There were other cases too that gave us comfort that from a legal perspective, that was a settled question, and we radically underestimated extent to which a change in the zeitgeist, in the temper of the times, could make its way into judicial consideration of issues like that and undermine what seemed to be well-settled precedence. We were all political and judicial conservatives working for the Bush administration and in the judicial sphere, what that means is believing that judges have relatively less discretion to indulge their views of good policy, that they are more constrained by the positive law, by the words of the Constitution, by the texts of statutes and by existing precedents than judicial liberals believe. Judicial liberals believe that judges have much more latitude to quote unquote work justice, and that the fabric of the law is much more plastic than a judicial conservative believes, and laboring under that view, all of us took, with the benefit of hindsight, far too much comfort from the fact that there was an existing, modern, unanimous Supreme Court precedent essentially providing, subject to a few smaller bore questions, that Guantanamo would be outside the jurisdiction of the federal courts. As, as time went on and the litigation continued and there was a backlash against some of these policies that gained traction internationally and domestically, that very much seeped into the thinking of the judiciary and I think an honest accounting of Rasul versus Bush is that it overruled Johnson versus Eisenrager on this point sub silentio. Interviewer: True. - That was a little bit beyond the imagining of the Bush White House lawyers at the time, and I think that's the biggest mistake we made as a matter of legal craftsmanship. Interviewer: So you were a clerk on the court. You said you clerked for Justice Kennedy. You must have seen that these justices do think outside of just precedent. I mean, that's their job so, and, and many of the attorneys who worked in the Bush administration all were clerks. They all saw that. - Yeah. Interviewer: So I'm surprised there was no one there who just spoke and said, look, you know, it's not black and white. There could be an argument about that. - Yeah, so that did come up in the context of some other legal issues that we had to cope with over time. For example, once it had been established that courts were hearing habeas petitions in the U.S. brought by Guantanamo detainees, the question of the extent to which the U.S. government could deny counsel to those people was one in which there was quite a vigorous difference of opinion within the White House Counsel's office about what the courts would do with that question, not so much what they should do. We were of similar mind about that, but, you know, two of us had clerked for Justice Kennedy who was kind of the balance wheel of the Court then as he is even today in 2015 and, you know, we were very much of the view that whatever the right answer was to the habeas question, that Justice Kennedy would be very, very troubled by an, a bill, by an effort to deny the assistance of counsel to these detainees but on the, on the initial question, the availability of the writ, even with the experience, which I think was common to seven out of the eight associate counsels of having clerked at the Supreme Court, it was also an experience that the deputy White House counsel Tim Flanagan had had, that both of the main lawyers working these issues at the Office of Legal Counsel in the Justice Department had had, even with the benefit of that experience, we thought the habeas issue was clear, straightforward, relatively easy, and that the courts would not have much difficulty with it, in part because you could pretty easily count to five on the Supreme Court of justices who were not in general favorable to an expansive interpretation of habeas corpus and the writ in general, and that included Justice Kennedy. Justice Kennedy had very strict views and jurisprudence about the jurisdiction of the federal courts when it came to affording habeas relief. He had been the author of a number of opinions that had tightly reigned in the scope of, of the writ, including one, I think, maybe called Stringer versus Black back in the '80s, so we were really not very concerned that the court would go running off in the direction that Justice Stevens ultimately took it to in a case like Rasul. Interviewer: So there was, just one more time, 'cause this is fascinating. We haven't heard this before. There was no one devil's advocate. No one person has said, wait, let's just consider that possibility. - I don't recall a single lawyer involved in these debates at the time who believed either A, that habeas corpus jurisdiction did extend to Guantanamo Bay, or B, that the courts would say that it did, whatever our personal beliefs about whether it did or did not work. So I don't remember any debate or dissent on that point. We all believed that Guantanamo Bay was beyond the reach of the U.S. federal courts and believed that the U.S. court system would quickly reach that conclusion. There were plenty of other issues as the years wore on where there was debate, disagreement, discussion, dissent about some of these big legal issues, Constitutional or otherwise. That threshold issue was not one of them. Interviewer: So when you, going back, when you said that Guantanamo surfaced in your discussions, was that immediately noticed that in fact, who raised Guantanamo also said, look, you know, this would also provide the habeas sanctuary? - So I can't remember exactly, you know, who first mentioned Guantanamo Bay or how soon after 9/11 or in what context. My general recollection is that it was an option on the table more or less immediately. It was a place that people thought about. All of us had been around for the issues involving Guantanamo that reached the Supreme Court back in the '80s in the immigration context. So, you know, we were cognizant of its existence there and of its rather unique status, and so I think it was very, very early on that it was a candidate and that it was discussed among the options and in terms of the awareness that there was in addition to the practical advantages that I described, also potentially this legal advantage, which was also a practical advantage, I recall being aware of that, you know, roughly contemporaneously with the earliest discussions of these, of these issues. It's not as though we went along for a month and then somebody said, hey, Johnson versus Eisentrager. In addition to all the other things weighing in favor of Guantanamo, we're not going to have to worry about al Qaeda terrorists suing the President there. We were all aware of that as a factor from very, very early on, I would say within the first couple of days after 9/11. Interviewer: In the first couple of days after 9/11. - I think so. Interviewer: Your team thought Guantanamo was an option. - I think so. I mean, again, a lot of time has passed and I couldn't swear that it was a couple of days as opposed to a week or two weeks, but I don't think it was, I'm sure it was well before the end of October and probably before the end of September, that Guantanamo was in the mix and that the habeas issue was part of the discussion. Interviewer: And it sounds like habeas tipped it because some of the other locations might've been more problematic with habeas, partly because they might have other countries supervising them or within their jurisdiction. - Yeah, no, I don't remember a lot of consideration being given at the time to setting up prisons in other countries as we now know happened in the black sites, the CIA black sites in eastern Europe. I wasn't part of any discussion of anything like that, and I don't recall consideration being given to that as an option at the time. Maybe it was, particularly in one of the departments or agencies, but I remember the options being Afghanistan, a ship, Guantanamo, or here in the U.S. Interviewer: What about an island in the Pacific or? - Yeah, that may have come up, that may have come up. There may have been other island options considered. I can't recall specifically an island or a couple of islands that people were talking about, but that rings a vague bell. That might've been in the mix. Interviewer: The way you're describing, which is really fascinating to me, is that Guantanamo surfaced early and clearly people focused on it and if they. - Yeah, people focused on it early because it seemed to have a unique combination of advantages. You know, completely secure, a U.S. military base, not on U.S. soil and separated by ocean water from the nearest bit of U.S. soil and yet accessible, accessible to, to the policy makers and to the people who worked in the U.S. government, accessible to those who might be trying to extract intelligence from these detainees, far away from home for these folks so there would be no hope or thought of escape on their part, and the legal advantage of taking away from them the possibility they would otherwise have if we brought them here to the U.S. of suing the President to challenge their confinement on one or another ground. Interviewer: I hadn't thought of this but I'm going to ask you and you don't have to answer, but knowing what you know now, would the committee have not chosen Guantanamo, do you think? (chuckles) - Yeah, well, you know, all of this did not turn out the way we wanted it to or thought it would. There was much more litigation, much more intensive litigation, much more unsuccessful litigation from our standpoint than any of us envisioned in those weeks right after 9/11. You know, military commissions is another major issue about which that's a totally fair question. You know, the assumptions that led to the decision to stand up military commissions and use them, and a number of the important assumptions did not prove to be true over time and what the decision would have been if we had known that those assumptions were incorrect, very hard to say. I think most of the people who favored using Guantanamo as the site to detain the captured al Qaeda terrorists, I think most of those people would stand by that decision today as the best of the available options. I don't know of any of my former colleagues that now think, knowing what we know today even, a better choice would have been to bring these folks into the U.S. I think most people felt pretty comfortable that from a policy perspective, that was the best of the available options. The difference may be that while we regarded it as quite a good option back then, we might describe it now as the least bad among a group of bad options, but that's a nuance, I guess. Interviewer: Do you think the, the way you're describing it sounds like, do you think the lawyers in the White House or perhaps in the entire administration were somewhat naive as to the way the world was moving? - Yes, I think some of it was naiveté and some of it was, was just a, a wrong guess about the way the world was moving. The naivete consisted of that blind spot I was describing in terms of approaching these legal questions very much with a firmly held belief in judicial restraint as the right way for the courts to approach legal questions and insufficient appreciation for the extent to which what are known as the legal realists really had it right as a descriptive matter, if not a normative matter in terms of how the courts actually do work. The, the part that was not naivete, but rather just a failure of imagination or a failure to predict accurately what would happen in the future is that when these discussions were all going on, the country was powerfully united behind the need to respond to the 9/11 attacks, to do so forcefully, to do so in a way that elevated the value of safeguarding American lives above most other values, no matter how worthy those other values would be, and with approval ratings for the President up in the 90s or the 80s. So we felt that there were gale force political winds at our back at the time, that the President had the kind of intense, incredible support domestically that comes along, you know, once every several generations, and in part because we probably didn't think as much as we should have about the global legal community and in part because I think we underestimated the determination and resolve of the left in the United States, we didn't think we would end up being on the wrong side of this debate from a public opinion or political or sociological perspective. That was very hard to imagine, you know, on October one, 2001. It turned out to be true but I don't think any of us thought that was the way things were going in those first weeks. Interviewer: Not even the members, the liberal State Department members, they even didn't? - You know, we had our frictions with Will Taft, who was then the State Department legal advisor. I don't remember them being over this issue. Within that working group that Pierre Prosper was, was chairing, I don't remember a lot of dissent from the State Department on these basic issues. I don't know that they would have been listened to for more than a second if disagreement or dissent had been expressed about this, but on these foundational questions in that period of immediate aftermath, I don't recall even the folks at the State Department who are much more attuned to international opinion, the views of the global elites tend to be much more skeptical and much more liberal than a conservative Republican White House. I don't remember even those people sounding alarms or even raising serious questions. They did about other things, the Geneva Conventions, for example absolutely, but this question of, you know, do we treat these people as unlawful enemy combatants? Do we house them at Guantanamo Bay, will habeas apply, there was pretty uniform thinking among every, every voice that I heard and these were the voices of a group of very smart, thoughtful, conscientious lawyers. Interviewer: And were you involved in, when you mentioned military commission, were you involved in the Bush declaration in November 2001? - Very much so. Yeah, I was, I was Judge Gonzales' point person on that so. Interviewer: Did you write the draft? - The four people who were involved in that in the White House were Judge Gonzales himself, his deputy Tim Flanagan, David Addington, the counsel to the Vice President, and then me. A lot of the action on that was in the State Department working group to begin with. It got vacuumed up into the White House when frustration developed among Gonzalez, Addington, and Flanagan about the pace of the deliberations that this inter-ag, agency working group had set, which were just at that time in the atmosphere of continuing emergency, regarded as just too slow. Interviewer: And did you have any doubts, or did anyone have any doubts that maybe Congress should get involved in drafting legislation for the military commissions? - Yeah, so here on this issue, there was much more debate and discussion. The Department of Defense, for example, was very leery of using military commissions. They, they favored an approach that would have used courts martial, the Uniform Code of Military Justice, and the established laws and procedures that applied to military trials for our own service members for these enemy combatants. So whether it was the, the State Department or the Department of Defense, there was a lot more inter-agency debate and disagreement over military commissions. I would say the White House and the Justice Department were sort of aligned in favoring having them in the President's toolbox in part because the right default setting on any question was, hey, if there was an available tool for the President to have in the toolbox, we should put it there in case he needed to use it, but in part for substantive legal reasons, whereas the Department of Defense and the State Department were much more cautious and much more worried about what establishing military commissions for the first time since I think World War II might do. They were much more cognizant of the risks and the downsides, which I think we in the White House and the folks in the Justice Department from a policy perspective probably undervalued. That's part of the reason why the inter-agency process was moving so slowly and which led to the frustration that caused the White House to just simply grab the reigns on that question in late October, early November. Interviewer: Can you tell us who with the Department of Defense was an advocate for moving slower? - Well, you know, Jim Haynes was the general counsel. So I don't think any of these views would have been contrary to his wishes. I don't remember him as an active participant in the working group. I could be wrong about this but if memory serves, a member of the uniformed military, a colonel by the name of Bill Lietzau was involved, and I think Jim Haynes' deputy, Whit Cobb, may have been involved. So I think it might've been Whit or Bill, maybe some others, who were sounding some of these notes of caution from the DOD, but, but the, you know, the military is very proud of the military justice system and takes great umbrage at the derision and ridicule that is sometimes directed at it by its critics. They feel it's a very professional, well-functioning, fair system, and I think part of, part of the reaction from the career uniform military, you know, below the level of the political appointees but which the political appointees in the Pentagon heard a lot was a worry that in some way or another, the establishment of military commissions would either effectively be interpreted as a disparagement in the sense of an identification of inadequacy with the existing system of, of courts martial or would, if they didn't work well, reflect discredit on the permanent system of courts martial. So there was, there was a lot of nervousness within the military about military commissions. Interviewer: Fascinating. Then did you, you must have, I just wanted to put it on camera that you met somebody must've said to you or you found it yourself that this would be unique where a president establishes the military commissions on his own without Congressional support. Was that of a concern or again? - No, it wasn't a concern primarily because once again, we had a pretty good-looking Supreme Court opinion and here I may be confusing Johnson vs Eisentrager and ex parte Quirin, one of those cases was unanimous. I think it was Eisentrager, but it might be the other way around. It could be that Quirin was unanimous and Eisentrager was 5-4 or 6-3, I'm not quite sure now, but ex parte Quirin was the case from World War II where a submarine had dropped off a bunch of Nazi saboteurs on Long Island. Those people had been very quickly rounded up by the FBI, I think because one of them lost his nerve and essentially turned himself and his confederates in, and the President had on his own order, again without a statute, any different from what existed in the statutes in 2001, had on his own order set up military commissions, which very quickly tried and convicted the Quirin saboteurs, and most of them had been executed within a few months of their capture. These trials took place in a room in the Justice Department that you can go see. There was not a, a, a public outcry over either the use of the military commissions or the way they functioned in practice or what was done by them to the Nazi saboteurs, and the case had been the subject of legal challenge that had gone all the way up to the Supreme Court, which had held either unanimously or, or in a divided opinion, I can no longer remember, that the President did in fact have authority to do this when it came to unlawful enemy combatants and that there had been essentially nothing wrong from a Constitutional or legal standpoint with having tried the Nazi saboteurs this way. So again, hearkening back to that blind spot, for a politically and judicially conservative lawyer, having a World War II era Supreme Court decision that appeared to be right on point and came out validating the President's authority to do this, if you were advising the President, it's not that hard. You say, actually, this isn't a new question. Supreme Court's already looked at it. They say you have the authority to do this and here's President Roosevelt's order doing it, and in fact, if you compare the order that President Bush signed in early November, what was it, the 13th of November, maybe, with President Roosevelt's order, you will notice startling similarities. We wanted to use as closely as possible, the same form of order that had already been reviewed and approved by the U.S. Supreme Court on the theory that the less you deviate from it, the less risk there is of a different result, and so President Bush's order of November 13, 2001 was patterned after FDR's order from 1943 or '44, whatever it was, and we thought it had already been blessed by the federal judiciary. Once again, stupid us. Interviewer: Fascinating, this is fascinating for me. So then one more memo we'll look at is, Bush's memo of February 7th, you know, where he said, we're not going to honor the Geneva Conventions except in principle. We're going to treat the men well, even if we don't adhere to them under the law. How did that evolve, and how did it? - I know much less about this one. I was not personally involved. I was not Judge Gonzales' guy on that one in the way that I was for military commissions or for some of these unlawful enemy combatant issues. I can't remember who was besides Tim Flanagan, the deputy at the time. I know he was deeply involved. I know David Addington, Vice President Cheney's counsel, was deeply involved. I can't remember whether one of my colleagues at the associate counsel level had been seized of that issue. So what I know about this is much more as a fly on the wall. We had a staff meeting every morning early where we were all kind of discussing what the issues are, were what was going on, getting the benefit of the group's thinking on particularly difficult questions. So I have a little bit of an understanding of what the overall reasoning was but I cannot give you much on the back and forth with the other agencies, who held what views, what the arguments were, where individual people lined up or exactly what was done or why, but I have a general understanding of that. Interviewer: Can you give us that? - Yeah, the, I think the view there, I know there was a substantial difference of opinion between the White House and the State Department on this, and I think it went up as high as the Secretary of State who at that time was General Colin Powell, obviously a senior military leader before he was a senior civilian leader and someone therefore very attuned to the laws of war, to the importance of the Geneva Conventions, to the ways in which they were applied and regarded around the world by us and by our allies. So he had a much more personal stake in this issue than someone who might've had a different background would have had, and the State Department view, I think was very much in favor of applying the Geneva Conventions. From the perspective of the people at the White House and at the Justice Department, because again the politicals at the White House and at the Justice Department were very closely aligned on this issue as well. It seemed crazy to afford the protections of the Geneva Conventions to a group of people who by the terms of those Conventions really did not qualify for them. The Geneva Conventions are meant to protect soldiers fighting in uniform as part of an organized army that itself respects and adheres to the laws of war, and therefore tries to minimize civilian casualties, fights fair in the sense that they wear insignia and uniforms, so you can distinguish them from civilians on the battlefield, and so when you look at the protections available to POWs under the Geneva Conventions, the idea that we were going to afford those to al Qaeda terrorists struck some people as absurd. For example, they're entitled to cooking utensils including knives, not so good for the U.S. servicemembers who would be guarding the al Qaeda terrorists. They're entitled to scrip to use at a store so they can buy things. You know, things like that, people would trot out and say, you know, are you kidding me? We're going to give, we're going to give, you know, Bin Laden or his lieutenants scrip so they can buy Doritos at the PX and we're going to give them a knife so they can whip up their food. It seems silly. Now, if the law had required the Geneva Conventions to apply to these folks, I don't think any lawyer in the administration would have hesitated to apply them, again going back to the fact that we were law people. We were strict constructionists and you know, where the law applies, we were going to apply it and not get too funky and creative trying to avoid it, but by the very terms of the convention it did not seem like they should apply, you know, first and foremost because these were not people fighting fair. These were terrorists. They were walking violations of the laws of war. They had intentionally attacked thousands of civilian office workers in an area far removed from any combat zone or battlefield and killed thousands of them. So, so it didn't look to us like the requirements for application of the Geneva Conventions applied and the most important policy consideration against applying the Geneva Conventions had to do with interrogation. If you're entitled to be treated as a POW, when you're interrogated by your captors, you're allowed to give your name, rank, and serial number, and say nothing further. The overriding objective of everyone involved in this effort in the months right after 9/11 was to get actionable intelligence from the detainees to try to disrupt any plots that were in the works. It's hard to put your mind back to that time period with the benefit of 14 years now without a successful mass casualty attack by Islamic militants on U.S. soil, but at the time we didn't know that's the way it was going to plan, pan out, and at the time there was very much the feeling that they, you know, if they pulled off 9/11, they could have something even more spectacular in the works, a nuclear attack on an American city or a biological attack on an American city were regarded as quite feasible, quite possible, and something to be feared horribly, and the general feeling was that if the President and by extension, the people serving him were not doing everything they could to try to prevent that from happening, that history would never forgive us if it did in fact happen. So the overriding objective was to get intelligence to try to figure out what else al Qaeda might be planning so that we could get in and disrupt it and break it up and protect Americans from another attack like 9/11 or God forbid worse. So with that frame of mind, the fact that you would have to say, you're really not going to tell me anything else other than your name, rank and serial number. No, my name is, my rank is, my serial number is and then you, you say, well, thank you very much. We'll see you tomorrow when we can ask you this same question did not seem like a good outcome from a policy perspective. So the compromise that I believe was eventually worked out which accommodated the State Department's concerns about not totally disregarding the accepted international norms for detainee treatment in the Geneva Conventions but still allowed us to avoid some of the absurdities of affording cutlery and scrip to al Qaeda terrorists and to gain some of the advantages in interrogation that you could have when you had an unlawful enemy combatant in your hands was to, was to declare that the conventions did not apply as such but that we were going to apply as a matter of executive grace and policy every aspect of them that wasn't absurd and didn't deprive us of, of those advantages. So treat people in a manner broadly consistent with the Geneva Conventions, but do not accept that as a purely legal matter, the terms of those conventions applied in every particular. Interviewer: When it didn't quite turn out that way, do, did people in the Bush's White House regret that they made that kind of decision? - When you say it didn't turn out that way, what do you mean? I'm not aware of the Geneva Conventions ever really applying to these folks. Interviewer: Well, because there was abuse in Guantanamo and had. - Oh, oh, I see what you mean, when it, when it didn't turn out that people were treated in a humanitarian way. Interviewer: That's right, that's right. - I was long gone by the time Abu Ghraib happened, and by the time the investigations into Abu Ghraib revealed more of what had happened behind the scenes in Guantanamo and elsewhere. I left believing that we did not employ any rough or coercive techniques even against these, these al Qaeda guys. In fact, someone, I can't remember who, had affirmatively told me that in the context of policy debates over access to counsel. We had a case. Interviewer: Told you what? - Told me that we did not employ any coercive or rough or, you know, physically uncomfortable techniques with the detainees. I had been told that all the U.S. did was essentially use psychological techniques to over time try to break down the will of these guys. That was one of the reasons that we believed, and we told the courts, we believed it was important that they not be given access to lawyers, not be allowed to sue the President. It was, I can't remember whether it was someone from the Department of Defense, I think it was, or someone from the CIA or both, but at, but at one point in a meeting over in the Justice Department, as we were discussing the arguments to use in this litigation before Judge Doumar down in, in Norfolk, it was explained that the way you could get information out of these detainees was essentially to cultivate a psychological sense of complete isolation, hopelessness, and despair so that in the end, the only people they really had to talk to were their captors, and they eventually wanted to please their captors, try to form a relationship with their captors and would begin telling their captors things, and that what I believed the day I left the White House in late January of, of 2003. So what people thought and felt when the abuses at Abu Ghraib and elsewhere emerged? I couldn't say. I can tell you that I was shocked and appalled and felt that I had been lied to, intentionally or not, way back when, when we were litigating those cases. Interviewer: And you had mentioned you worked in another litigation or other matters after you worked on the military commissions proposal. Can you tell us of a couple? - Well, the, the, the creation of the Department of Homeland Security was really the next big thing that I tackled after military commissions. Interviewer: That came up that early? - Well, it was, it was in the early spring of 2002 that we began working on that. There was a group formed at the White House, essentially in secret, totally confidential, met after hours in the President's emergency operations center without the knowledge of many of the most senior members of the White House staff to consider whether the government should be restructured to better meet the threat of terrorism. Interviewer: Who chaired that movement? - Andy Card, the White House chief of staff at the time, I think with the President's knowledge and blessing. So a group was convened. There were nine people, four principals, and then what was referred to colloquially by us as the G5, the group of five who were subordinates of those four more senior officials, and the nine of us met throughout the spring of 2002 to try to consider the question, blue sky, leave aside political feasibility, what is the best answer for the country and for the structure of our government to dealing with the threat of terrorism, and it had been provoked in part by some congressional criticism of our unwillingness as an administration to have Tom Ridge, the Homeland Security Advisor, who was then a member of the White House staff, go up to Congress and testify about what we were doing. There's a longstanding position that incumbent members of the White House staff are covered by executive privilege, do not have to go up to Congress and answer their questions in the interest of protecting the institutional interests of the presidency. We were not allowing Ridge to go up and testify, but there was a recognition by Andy Card and by the President and by judge Gonzales that Congress had a legitimate interest and a legitimate need and desire to hear more about what was happening and one of the possible solutions to that was in fact to go ahead and create either a statutory office within the White House or a department or agency of government. I think Joe Lieberman had been one of the guys at the time who was critical of our views on this issue. People around the White House respected him and his, his opinions and I think, I think it got through and so I think catalyzed, at least in part by that issue of who can we have go up to Congress and testify, but in part by considerations of, okay, this is a good time to sit back and look at whether we really are optimally structured to meet the modern threat of terrorism. This working group was, was formed and developed the policy in the spring of 2002 that ultimately led to the President's announcement on June sixth or seventh, 2002 that he was going to be sending Congress a bill to create the Department of Homeland Security. The four senior officials who were part of this group were Andy Card himself representing the Chief of Staff's office, my boss, Judge Gonzales, the counsel to the President, Tom Ridge, who was the, the Homeland Security Advisor and the fourth, I don't know why I'm having trouble remembering this, oh, the, the, the Office of Management and Budget, Mitch Daniels and 'cause 'cause OMB has responsibility for the organization of government among other things. Each of those principals was allowed to pick one person to help them with this with the exception of Ridge, who was allowed to pick two because obviously they were the central policy driver on this question, the Office of Homeland Security within the White House at the time. So I was Gonzales's designee and I worked with the G5 over those months, reported into the four principals, and eventually we, we achieved consensus on what to recommend to the President. Andy Card took that into the President, Andy Card and Tom Ridge, he approved, and it was announced in June. Interviewer: And was there any input at all from the DOJ or the DOD or the State Department? Did any of the non-members know? It was entirely a. - It was entirely a White House operation, and that is not an approach that in general is designed to maximize the accuracy of the decision, the quality of the decision. What it does maximize is speed, and also the ability to make a big change as to which there might otherwise be a lot of internal resistance. Andy Card's calculation, as I understood it at the time, was that if word got out, forget about the press, but to the Cabinet secretaries and the heads of the agencies that this was under consideration, immediately turf wars would break out and the Cabinet secretaries and other appointees and the career civil servants at senior levels in the departments and agencies would throw so much sand into the works, we'd never be able to do anything big. So the calculation was made that to preserve our freedom of action, this small group of nine of us would try to figure out what the best answer was, and after we decided what the best answer was we would announce it in, in broad strokes and take input at that point from the Cabinet departments and agencies, as well as from interested parties on Capitol Hill, and we would be flexible and make changes where they made sense but at that point, we'd have the momentum behind us. All of the President's appointees would know that this was a signature initiative that they were expected to fall behind and support, except to the extent they really felt we were making a huge mistake, and in fact, that's, that's the way it worked and I think everybody involved in that process including, Andy Card, felt that it really would not have worked any other way. Interviewer: Were, I, the way you mentioned Joe Lieberman, was he aware of this? - He was not aware and he was royally pissed off after the President's announcement. I guess, to be fair it was a mixture of pissed off and gratified because he had been working on this issue a long time, he and his staff, and they had proposals for doing something like this on the shelf that they had been advocating. So on the one hand, he was happy to see that, that the President ultimately agreed with the drift of his thinking and was going to get behind doing something that he thought made sense, but also I think angry that all the good work and thinking that he and his staff had done over a long period of time had not really been taken into account by the White House in formulating the policy. They were only half right about that. We did study all of the work that had been done on this to the extent it was embodied in public reports, whether emanating from Capitol Hill or from academic experts. So there, there were five or six major proposals to do something like this that had been floating around in the think tank world, the academic world, and on Capitol Hill for years and the G5 and the broader group took careful stock of those, analyzed those, we made presentations to the senior leadership of the White House involved in this on what the solutions were that were recommended by those other folks, but needless to say, the lack of real-time consultation and collaboration and cooperation with Senator Lieberman and his staff stuck in their craw, and when we sent them up a bill, an actual draft bill, they were pretty unhappy about it too. This was the first piece of legislation the President had actually sent up to Capitol Hill. He had set up the outlines of policy proposals before, never bill text. Right after the President's announcement, I think that night, we watched it in the Roosevelt Room in the West Wing, I think that night Andy tasked me with taking charge of actually writing the legislation and I got a group together and over the next very short period of time, just a few weeks, one of the most intense weeks of work in a career that has involved many, very intense periods of weeks of work, we did draft a bill, but it was short and it maximized executive flexibility to make the department work and to reorganize it if it wasn't working. You know, it might've been 38 pages, 39 pages. You know, Lieberman had 250 pages of bill text sitting in his committee offices, and so we had some tough meetings with them in the immediate aftermath of sending it up in which the staff was quizzing us about why we hadn't adopted this or that section, part, subpart of the bills that they had already written up. You know, there was a little bit of a bridling at the fact that we had just started with a clean sheet of paper. Interviewer: And you were, you were the lead. From what you're explaining, you were the lead Bush White House person on this legislation. - On drafting it, on drafting it. The proposal, the policy was driven by Tom Ridge and his two staffers, Richard Falconwrath, who subsequently became White House Homeland Security Advisor after Ridge went over to become Homeland Security Secretary. General Bruce Lawler was Ridge's second person working on that and then Joel Kaplan, who was working for Andy Card was really instrumental in the policy development as well. He subsequently became deputy chief of staff later in the administration. So I was not the policy lead for figuring out whether there should be a department and what it should look like, although I was part of the small group that deliberated on those questions. Where I did have the lead was in actually drafting the legislation to send up to the Congress. Why, because I was the lawyer. Interviewer: Well, who, when you said you had a staff, who was your staff if you were associate? - Well, it was not comprised of other members of the White House Counsel's office. I had never drafted a bill in my life. I'd never worked on Capitol Hill. I had never drafted a bit of bill text. I was certainly familiar with legislation from my work as a lawyer over the years but I reached into the departments and agency, departments and agencies, and put together a dream team of some of the best bill draftsmen from within the federal government. There, there were people very expert in this. There was one from the Justice Department, one from the Treasury Department, and we set up a war room in the old executive office building and worked around the clock for weeks until we had a bill. Interviewer: Was there any discussion on whether the agency was too large, in fact, maybe in absorbing these other agencies into Homeland Security, you were actually creating something that was two mammoth? - Would, would create dysfunction or clumsiness or cause problems, rather than solve problems? Sure, of course. We were very much concerned with optimizing the thing. At the same time, we knew two things. One, that it would be a political loser in the short term for President Bush. None of us thought this was going to be a big political win. Why, because we knew it wouldn't work all that well in the early going. Nothing that big, that ambitious, or that complex ever does or ever could. Among the things we studied were the, the creation of the most recent Cabinet departments, the Department of Energy, I think the Department of Transportation. We got, we went back and looked at the history of those things, and you could look in every case two, three, four years out on the anniversary of their creation Time Magazine would run a big story talking about how dysfunctional and what a screwed up mess the new department was. It was almost a, a law of nature that you create a new government department and it's gonna take a few years to really work well. So we were keenly aware of the political downsides for the President as was he. It's very much to his credit he decided to move forward because he felt it was the right thing to do notwithstanding some of the disadvantages to him personally as a political matter and, and very concerned with trying to get it right. We would not have done it if we thought it would make the country more vulnerable in the short run, even to get those long-term advantages. We did have to satisfy ourselves that things would work at least as well in the immediate post-creation period as they were working previously. So, you know, not everything that was proposed to go into the department ended up in the department. It wasn't the maximalist answer that rolled out at the end. For example, there was a time when we were thinking about having the Coast Guard as part of this department and it did not end up in the department. So, so yes, there was sensitivity to the problems of size, of scope, of coordination. I would say the big drivers, the big reason it was done was a unity of command, centering authority over all the pieces of the puzzle for prevention of threats, detection of threats, and responses to attacks under a single Cabinet officer who could be accountable for the results across that range of activities, who could be accountable to his boss, his or her boss, the President, also accountable to Capitol Hill and to the public, and who would have the authority to make them all work together, to break down the silos that were otherwise separating them and preventing effective coordination. So centralizing that responsibility and that authority in a single Cabinet department was the overriding policy reason why that group of nine people ultimately recommended to the President that the department be created. Interviewer: You know, I listen to you. I'm thinking, and I'm not sure you wanna answer this, but I'm thinking, you're a lawyer and lawyers are paid by their clients to do the work of their clients, but it sounds like you grew in this job. Did you really believe in this powerful executive when you started or did you come to believe it as you observed what was going on post-9/11? - Yeah, that's a very interesting question. The short answer is both. I came in a believer in executive power, especially in the field of foreign affairs and national security, and left an even more convinced and more passionate believer in executive power, again, especially in foreign affairs and national security. I think I had, have always had and continue to have a healthy respect for the rights and prerogatives of Congress as the people closest to the public and closest to their constituencies, whether in an entire state or in a congressional district. I wouldn't say I ever felt a disrespect for Congress as an institution or the members of Congress, but I was a Hamiltonian and very much believed in the advantages laid out in the Federalist papers for executive supremacy in the field of foreign affairs and national security as a complement and parallel to real legislative suprematy, supremacy in the field of domestic affairs. Interviewer: So you were comfortable watching, watching yourself evolving, growing during these two years, you were comfortable in what you were. - Yeah, I was, and you can't possibly be sitting in the White House during an event like 9/11 and then watch what unfolds in the days and weeks after 9/11 from that vantage point and not become a passionate believer in the ability of the President to respond. I imagine it's how FDR's staffers felt in the middle of, of the Depression as he was cranking up the New Deal. One thing that I observed when I was there is that in a true crisis, power immediately floods into the center. The appointees, most of them become a little bit paralyzed and worried for a combination of reasons, and the normal processes by which policy gets made are generally not fast enough and not efficient enough to respond to the exigencies of a crisis. So of necessity, power rushes to the center of government or of a big corporation like this in a crisis, and the leader of that organization begins exercising it much more personally, and his or her immediate staff, the people who are his right and left arm and right and left leg, began exercising it much more directly in his name than they would under ordinary circumstances, and that's a good thing, not a bad thing. There's a price to be paid for it when you go fast and you're acting on less complete information than you would otherwise have, and you're acting without the benefit of the fuller, more robust, thoughtful debates you would otherwise have. Some of your decisions are going to be worse. You're going to make more mistakes. Your policies are going to be less perfect. I'm pretty sure I understood that at the time, and I think other people understood it at the time but it's an absolute necessity. You just can't stand around and wait when there might be another mass casualty attack just around the corner to achieve consensus within your own administration, much less on Capitol Hill, and the founders, in drafting the Constitution, had actually been very mindful of that because of the experience that they had had during the Revolution when General Washington's leadership had been essential to, to victory, during the Articles of Confederation period after the Revolution when the lack of a strong executive had really hampered the country's ability to be effective, especially on the world stage, and, and so the Constitution is informed very much by the view that as much as we want checks and balances in the domestic sphere to ensure that our own citizens' rights are not lightly abused, that in the foreign sphere and in national security affairs we need what Hamilton called "the secrecy and dispatch "that only a unitary executive could provide." You needed an executive that could make decisions, act quickly, respond to things happening around the world, and since the time of the Constitution's adoption, those fundamental policy imperatives that lie behind the structure of the Constitution had only become stronger as the speed of information and the speed of foreign affairs and the nature of national security threats just grew and grew and grew. It all happens at warp speed now and so, yeah, I left a very convinced believer, an even more convinced believer than I had been at the outset of that, of that basic principle, but subject to restraints. So I testified in Congress a few times in the years after I left the White House in, including on issues like Congress' ability to end a war that they didn't like, and I like to think that I articulated pretty nuanced views of a question like that, consistent with the text and structure of the Constitution so it's not a blind executive supremacy or an unlimited view of, of executive authority. Interviewer: Okay, did you see any pushback from Cheney or push forward from Cheney when if you were working for President Bush, was there any, maybe you don't want to respond much on that, but was there conflict in that sense? 'Cause obviously as an outsider, we hear that Cheney did make policy and did sometimes lead policy. Did that affect the way you, your role? - So bearing in mind that I was there from January 2001 to January 2003, I never saw conflict between the office of the Vice President and the executive office of the President on these kinds of issues. There was very much a feeling that the President and the Vice President shared the same basic view of the world, the same basic policy objectives, that they were in the boat together, rowing in the same direction, and that we as their respective staffs were in that boat, rowing in that direction too. It is certainly the case that the Vice President and his lawyer, David Addington, had a serious and meaningful voice on this whole range of issues. President Bush, at least in those early years from what I observed, had great respect for his Vice President, who did after all have one of the more incredible resumes in the history of government and was a very wise and tough character. By luck really, he's someone who had spent much more of his time in public service thinking about national security threats and things like terrorism than most, and I think the President was grateful to have his expertise and his advice. So when he wanted to play in an issue, he did, and his lawyer, David Addington, who was also a very experienced government guy, very smart, very tough, had worked with the Vice President on Capitol Hill and also in the Department of Defense when Vice President Cheney had been Secretary of Defense, was very active in these issues, was an incredible workhorse capable of producing a lot of creative thinking. I didn't always agree with all of the ways in which the Vice President or David Addington went about trying to get their way in policy disputes or fights or issues, but that was a matter of means, not ends. On the ends, there was almost total synchronicity during the time I was there. Interviewer: I'm almost finished, but can we just change cause for a moment? - Of course. Interviewer: And then take a moment, then we'll go back. - Yeah, how we doing? Interviewer: Okay, I wanted to ask you about Judge Gonzales. You know that he had a reputation among people who didn't know him at all that perhaps he wasn't fit for the job. Is that how you saw him? - It's not how I saw him. I thought that he was an incredibly good and wise counselor to President Bush as White House counsel, which is all I observed up close from the inside. I think he's one of the administration officials I would point to out of, you know, the top two or three whose reputations and careers and lives suffered most unfairly from their service in the administration. I knew him to be an incredibly smart man and incredibly decent man, a very fine lawyer with a, with a good mind. You know, there are grounds on which you could criticize his performance in one or another respect, but he's, he's nowhere near the incompetent that Senator Schumer successfully portrayed him as in the fight over the U.S. attorney firings in which ultimately led to his stepping down as U.S. Attorney General. He's a, he's a good man and a really good lawyer and deserved better than what he got. I saw him work tirelessly through 9/11 and its aftermath in unfailing good humor, maintaining an even keel and a calm demeanor and good leadership of the office, a relatively young man in his 40s at the time under the most pressure, difficult circumstances one can imagine, and I think I can speak for the whole White House Counsel's office in professing great admiration for Judge Gonzales and regret that his public reputation ended up being what it was by virtue of that political conflict with the Senate Judiciary Committee. Interviewer: Thank you, that was good. Did you have, did you have anything, were you aware when Jose Pedilla was put into the Naval brig? Is that something that the White House counsel was aware of or involved in? - Yes, I think so. Was it his case that ended up in front of Doumar in Norfolk, Judge Doumar? Yeah, so then we were for sure, because. Interviewer: When you were describing that earlier, to use psychological approach to a holy man. - Yeah, yeah, so my memory on this is a little bit hazy but if it was his case that was in front of Judge Doumar in Norfolk, then I'm, I'm quite sure that at least. Interviewer: Actually it might've been well, he might've been in Norf. He, actually he might've been the person who was first in Guantanamo, al-Marri who went to Norfolk. - You may be right. It might've been al-Marri. It might've been al-Marri. Yeah, I do believe that I knew about and was involved in some way in Padilla's situation, not so much in the initial decision about what to do with him, because if memory serves his case came along a little bit later. The running rules were more well-established at that time. The government was functioning more normally, and the bureaucracy, the Department of Defense was able to make some initial calls working with the Department of Justice and others about what to do with him but litigation rapidly ensued on his behalf, I think, because he was a U.S. citizen and was therefore detained in the U.S. I should have said earlier. Yeah, I think I should have said earlier that there was never any consideration of housing U.S. citizens in Guantanamo nor was there ever any consideration of trying U.S. citizens in military commissions. All of the policy makers and lawyers in the White House and Justice Department believed that U.S. citizens did and should have a more robust complement of legal rights than foreign terrorists. Nobody believed, for example, that a U.S. court would not have jurisdiction to consider a petition for writ of habeas corpus brought by a U.S. citizen at Guantanamo. So in the case of the relatively few U.S. citizens that were detained as as unlawful enemy combatants, there was a pretty clear understanding all the way along that they were going to be brought to the United States, detained in the United States, afforded the rights of U.S. citizens to gain access to the U.S. courts and would be tried, you know, either in courts martial or in civilian courts, but, but not in military commissions. The critics ended up using some of that against the administration saying, well, if the military commissions are not good enough for U.S. citizens, why is it fair to apply them to Afghans or Iraqis, to which I think the administration's answer would have been, well, because these guys are U.S. citizens and those guys are not, but that was not an answer that satisfied a lot of critics, especially foreign critics. So they ended up using it a little bit politically and in the courts against the administration. Interviewer: But you're saying that in your discussions on Guantanamo and the president, that it was very clear that U.S. citizens would not. - Were different, they were legally different. They were different as a policy matter, even if they had turned against the United States and were trying to harm the U.S. and harm U.S. citizens, their status as citizens gave them a full complement of Constitutional protections that we did not believe foreigners were entitled to or should be entitled to. Now, that didn't mean that they were not unlawful enemy combatants. The Civil War had afforded plenty of examples and precedents of people who were regarded as simply rebellious or disloyal U.S. citizens being treated as unlawful enemy combatants. Back then in the colorful language of, of the 1860s, they were variously called things like jayhawkers or bandidi. If you look at those old opinions, those are the kinds of words that you'll see, but they were U.S. citizens nonetheless in the eyes of President Lincoln, and, and so we believed that a Pedilla or an al-Marri could be treated as unlawful enemy combatants, but with an important distinction. Unlawful enemy combatants, entitled to all the protections of the U.S. Constitution, unlike a foreign terrorist. Interviewer: I will say that Pedilla wasn't allowed to see his attorney for several years or wasn't allowed access to an attorney for several years. So that wasn't afforded to him. So there were some restrictions put on him. - Yeah, there were vigorous debates over the access to counsel issue. If, if memory serves, there was no law and no decision of the U.S. Supreme Court saying that anyone had a right to the assistance of counsel in the habeas context. It was, in that respect, very much unlike indigent Americans confronted with the criminal system. If we had charged Jose Padilla with a crime, as I think we ultimately did, then he would have absolutely had a right to counsel under the Sixth Amendment and no one ever doubted that, but the question of whether an unlawful enemy combatant who happened to be a U.S. citizen was entitled to counsel to pursue a habeas petition was unresolved as a legal matter, and the administration took the position for a while at least that they were not. Why, because the view was that that was the position that was going to allow us to interrogate someone like that most effectively and disrupt attacks. If, and when the courts told us that, that we were wrong about that, obviously everybody from David Addington and Judge Gonzales on down would comply then with that ruling, but without any law telling us that that was the wrong position and a pretty uniform belief that from a policy perspective, i.e. from the perspective of trying to protect Americans from future attacks that might be in the works that this was the most protective approach, the administration decided to try to not permit someone like that to have the assistance of a lawyer so that they could be interrogated without feeling like, I have a champion in my corner, I am empowered. I can sue the President. I might get released. You know, those were the kinds of things that would undermine effective interrogation, but on that issue, unlike some of the others which we've discussed, there was vigorous disagreement and debate among the Bush administration lawyers, both about the normative right answer from a legal perspective and about what the courts would ultimately do with that question, and that was one where some of the former Supreme Court clerks who had clerked for swing justices said this probably is not going to fly ultimately. Interviewer: And the fact that Padilla was kept in isolation is consistent with what you were saying is the idea is to keep him trusting only his interrogators and no one else, and I assume you didn't and no one in administration really knew how he was being treated. - I certainly didn't. I never, the, the first time I ever went to Guantanamo or, or saw a detainee in the flesh myself was several years after I left the government, after I left the White House, when the DOD took me and a few other people who were active in the public debate over these issues down to Guantanamo to show us the place. So I went as kind of a VIP or influencer or whatever who the government felt it was in their interests to give more direct observation of what was happening to, but by then the whole thing was fully up and running. Camp X-ray had long been shut down. It was Camp Delta and other things down there. So, no, I had no idea exactly what was, what, what the conditions of confinement were for Jose Padilla. I vaguely recall being assured that he was generally receiving treatment condition consistent with the way U.S. service members would be treated with respect being paid to his religious needs as well, prayer mat and arrow on the floor pointing to Mecca and the like, but I don't remember knowing much at all about exactly what was happening with him in the, in the South Carolina naval brig. Interviewer: And did you have any awareness of John Walker Lindh when he was captured? Was that something that? - Hmm. I don't remember knowing much about that. I don't. Do you remember, do you know when he was captured? Interviewer: I think he was captured, December 3rd I think is when it. - Of 2001? Interviewer: Yeah, when it hit the news, and he was captured a few days before then and then held on a ship. - For a while. Yeah, I must have, I must have been aware and probably aware beyond whatever was in the papers but I don't remember having any substantive involvement in his case, either the litigation or the. Interviewer: So ultimately, it was negotiated with the White House and his prison sentence, so you could have been involved in. - Yeah. I don't remember knowing anything about that or being involved in that. Interviewer: Just looking back, were you surprised when Obama said he was going to close Guantanamo or did you expect him to? - I wasn't surprised when he said it. It had been a cause celebre on the left for a long time. Obama is a man of the left, and so it was certainly no surprise that, that, that he would be playing to that constituency by stating that objective. I was very impressed and at least mildly surprised when his review of the situation early in his first year concluded that in fact, he really couldn't successfully close Guantanamo without bringing some of these terrorists onto U.S. soil. To me, that was a sign that he was taking the weighty national security concerns here seriously because I knew from my work that there were people among those detainees, maybe not everyone, but plenty of people who were hardcore terrorists, very dangerous, that you could not release, and that you could not try, certainly in a U.S. civilian court for a variety of technical legal reasons having to do with the type of evidence that's available in a normal court versus in a military commission, and so when his review agreed with that sentiment and said, well, what we're going to have to do if we close Guantanomo is bring a bunch of these guys into the U.S. and hold them here indefinitely without trial, I was encouraged because I took it as a sign that he and his team were not just playing politics with these really life and death issues but were in fact serious about trying to protect the country even where it risked some political damage to him and forced him to, in effect, agree with something President Bush had been doing which he was quite loath to do early on, and even in the cases where he did it, he usually denied he was doing it and explained something in a cosmetically different way to try to make it appear as though he was not validating a Bush era policy, but in that respect he was, so I was mildly surprised and encouraged by that. Interviewer: And John Bellinger told us that maybe Bush was involved in a torture business, but Obama killed them with drones. (chuckling) - Well, you know, schadenfreude is sort of an unattractive emotion but there was a little among former Bush officials when we saw our former critics take positions in the Justice Department, grapple with these very hard issues and either come to similar conclusions or do things themselves that we knew they would have called us war criminals for doing when we were in office, you know, like killing American citizens in Yemen with, with a drone. You know, Anwar al-Awlaki and his son are the classic example, and, and there were, you know, particular individuals who were involved in that decision and validating the legal basis for it, who had been very aggressive and very critical of a lot of good, conscientious Bush lawyers for making decisions no worse and arguably not nearly that bad during the time of the Bush administration. Now, these are also good, decent people and very fine lawyers, people, some of whom I know personally and like personally, but there was a little bit of schadenfreude seeing them get the black armband treatment when they finally had to grapple with these issues and make some of these hard decisions. Mind you, we didn't think their decisions were wrong and we were not critical of them or of their decisions, just sort of gratified on some level that they could now see what it was like to be a decision-maker and actor with weighty national security concerns in the balance rather than merely a critic and a political opponent. Interviewer: So when you were inside the White House as opposed to being an outsider, did you also see things very differently in how you saw it from, because apparently when Obama, you know, realized that what he was thinking outside was very different from what he. - Oh, yeah. You can't, you can't not have a different perspective on these issues when you've spent some time inside government grappling with them. You just have access to a different quality and quantity of information about them. You feel the real burden of making those decisions, having to, having to make them and execute them. There's a sense of responsibility that you don't have if you're just a critic on the outside grinding a political ax. I had been a vociferous critic of President Clinton during his term in office, largely based on the personal scandals in which he had been involved. I, I really had great distaste for the man and, and the way he behaved in office but after my White House service, I regretted some of that and feel like I would not do or say some of the things I did back in the 90s if those circumstances were to be repeated because you just, you understand what's at stake for the country and having a President beleaguered and distracted and, you know, it's not that I came around to the view that President Clinton was a paragon of virtue, but I did come to understand how weighty the responsibilities of that office are and how dangerous it is for all of us to attack its incumbent if the incumbent is, you know, trying to do the best job he or she can and is trying to make difficult decisions. Interviewer: So Lawrence Wilkinson, who was Colin Powell's chief of staff said during those early years, said to us that he thinks President Obama particularly was captured, Obama was captured, and he meant by that that strong interests control them in that he was not aware of those interests 'til he came into office. Do you see that as true for most? - I wouldn't use the language of capture. You know, when one talks about agency capture or executive capture, it connotes co-optation and the undermining of a theoretically pure set of views by vested interests that work their will on, on the person in question. I see it much more as education than capture. I think when President Obama came into office, had his first briefings from the intelligence community in the Situation Room, had to make decisions, many of which never even see the light of day about what to do in the face of emerging national security threats, his perspective simply changed for good and valid reasons, and in a way that I would hope anybody's perspective would change. It would take a total ideologue or dogmatist to move into the Oval Office and have the experience that any president's going to have in the first six months in office and remain of the view that the National Security Agency is a bigger threat to American liberty than al Qaeda or ISIS. It's, it's pure poppycock once you've had a chance to really see it up close. Interviewer: And did you, so did you, when we were told that there were many threats, this kind of brought it up, many threats to the U.S. that the Bush administration was able to curtail through insider knowledge, that's the kind of information that you were aware of as well? - I was not a recipient of the daily threat matrix or seeing the PDB or the, the intelligence briefings the President was getting. The people in the office of Homeland Security and Department of Homeland security, yes. Me in and my role, no, thank goodness. I think it allowed me to sleep a lot better through all of those years. So I can't give you any worthwhile perspective on what the threat profile looked like at that time or whether we successfully disrupted plots. I know about that issue only what I read in the papers. The only time I think I was seeing that kind of real-time intelligence was on the night of the State of the Union Address in, in 2002, where I was the lawyer in the undisclosed location with the successor President who would have been responsible for ensuring the orderly transfer of power to the new President in the event the Capitol had been blown up, and in order to do that, we had a pretty extensive briefing that day from the CIA in this location, and I'm happy to report that on that day there were no very serious threats which is probably why I was the lawyer in that location. Interviewer: So how do you make sure? Director: I just wanna make sure you're okay on time. It's quarter of now. - Yeah, I, I need to bounce, another question or two, yeah. Interviewer: Why don't we, two more questions. One is, so how have you evolved over these years? Have you changed through working for the Bush administration? - Sure, I. Interviewer: Yeah, and then one more question after that. - I th, I'm, I'm unquestionably older today than I was then and I think somewhat wiser, somewhat wiser about litigation and Constitutional litigation and a certain category of issues that have maximum political saliency, more realistic probably about how the courts work. I think I have a much richer understanding of the way civil society works in the West and the way the global community, legal community, human rights community can influence domestic debates in the United States. In terms of my own personal views, I, I remain a conservative Republican mostly from an economic and foreign policy and national security standpoint. My views, my substantive views about what constitutes good policy have not changed. With the benefit of hindsight, I have a very different view on the war in Iraq than I had at the time that was launched. I recognized it as a big gamble and a difficult decision then and so, you know, I was not confident it was the right thing to do but I was a supporter. With the benefit of hindsight, I think you'd have to say that if we could take that back, we would, and that the world would probably overall be a lot safer today if Saddam Hussein were still in power in Iraq and that old status quo, however ugly, were still being, you know, maintained in three yards and a pile of dust through the exercise of, of U.S. power. I think I gained an appreciation over time for the importance of listening to one's critics and taking seriously what they say. You know, Neal Katyal was my big antagonist on military commissions. He was the one who ultimately argued and won the Hamdan decision on military commissions in the U.S. Supreme Court. In the course of debating one another over the years, he and I became close friends. We had been friendly before that. We knew one another before that, but I have enormous respect and affection for Neal, and I think we would have benefited from hearing a voice like his inside the administration while we were deliberating on those policies. Sometimes, I think a lot of times, maybe most of the time, people in politics and government have a bit of tunnel vision, particularly when they're surrounded by those who are like-minded and they don't have enough trust in people with differing views to kind of really invite them in and really listen to them, and, and that's a big lesson that I drew from those years and I think I'm very, very open to opposing views and opposing voices in weighty debates now in a way that I probably wouldn't have been certainly not to the same extent back then. So that's a bit of hard earned wisdom. Interviewer: And is there something I didn't ask you, Brad, that maybe you thought before you came here, you'd like to talk about or? - It's been pretty comprehensive. I can't say you've missed much. Interviewer: So then just last thing then. I'll just say, so Obama came in saying he was gonna invite Republicans to work with him. That would be consistent with what you just said and that was, that would be a good thing. That's the way Presidents should act. - I think that would be a good thing. In my view, it didn't happen, it didn't happen at all, and in fact, he ended up being more of a divider than most presidents, invited in Republicans and critics to a far lesser extent. The passage of Obamacare without a single Republican vote is a classic example. That requires a meta-political wisdom from a new president that probably very few have. It requires real wisdom and real strength because every voice in your ear when you're a new president and you've taken over from a president of the opposing party tells you everything that guy did was bad. Every idea you have is good, and the people you need to please are the people who put you in that chair. So there are powerful, powerful forces that encourage you to play to your base, to listen to your supporters, not to your critics, to do things that will get them to cheer and make them feel that the money they spent electing you and the time and the energy they spent electing you was well-spent, and to rise above that and to go against the advice you're getting from your political advisors, to conduct yourself in that way and really reach across the aisle, reach out to critics not just in a pro forma way, but to really listen to them, to try to find the middle for the country and to try to do something that'll enjoy some broader public support, the real genius politicians can do that, but I'm not sure especially for a new president than anyone less than a genius politician is capable of it. I mean, there have been the Lincolns and there have been the FDRs and, but they don't come along that, and I was very disappointed in the way Obama conducted himself in his first term in this regard, and I think by the definition I just laid out, you couldn't call him a genius politician. Interviewer: Would you like to be an advisor to the next president? - (laughing) You know, when I left Washington and my law practice to come up here to GE and take this job, to some extent it was a conscious decision to mostly say goodbye to all that and to devote my time and energy to one of the things I've always believed most firmly in, which is private enterprise and capitalism in a, in a great global company. I can't say I would never go back into government if invited back, but I don't think I would be trying to get a position in government. I saw too many friends and colleagues whom I knew to be very good, honorable people hurt too badly by their service, realizing that quite apart from the substantial income you leave behind as a private lawyer when you go into government, you put your entire reputation on the table and to some extent you can lose it, whether or not you do anything wrong. You can become a political football. I spent a lot of time in the years after I left the White House, representing former friends and colleagues in trouble through grand and, grand jury investigations, Congressional investigations, and the like, and most of them, maybe all of them really didn't deserve it. So that tarnished the experience of government service a bit for me. That having been said, I would say the two years I spent in the White House were the headiest, most fascinating, and in many ways, most satisfying years of my career, and I feel enormously privileged to have had them. Very few Americans get that chance, and I feel enormously grateful to President Bush and Judge Gonzales for having given me the chance to serve. Interviewer: Yeah, and those two years especially. - Yeah, well, no one knew those two years would be those two years but they turned out to be quite consequential. Interviewer: Well, we need 20 seconds of room tone and then we can turn it down. - Okay, sure, great. Director: Begin room tone.